November 26, 2014

North Carolina: Court Denies Lawyer In DUI Blood Draw

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North Carolina Appeals Court denies DUI suspect access to a lawyer during a forced blood draw.Several states
have begun cracking down on the the practice of drawing blood by force
from motorists in light of the US Supreme Court's McNeely decision (view case),
but not North Carolina. The state Court of Appeals decided last week
that motorists suspected of driving under the influence of alcohol (DUI)
may not have access to legal counsel if they are having their blood
forcibly drawn pursuant to a search warrant.

Matthew Smith
Shepley, a 26-year-old student, was not behind the wheel of a car, or
even a motorcycle at 11:30pm on November 22, 2011. Instead, he was
pulled over on 20th Street in Buncombe County while riding a scooter
with a non-DOT approved helmet. His driving showed no signs of
impairment, and he pulled over in his girlfriend's driveway.

During
the traffic stop, Deputy Dean Hannah smelled alcohol and took Shepley
into custody. At the Buncombe County Detention Center, Officer Travis
Jones apprised Shepley of his right under state law to call an attorney
and have a witness present for the breath test, and Raquel Harvey
arrived to watch. Shepley asked for the breathalyzer machine to be
calibrated, but when the officer refused, Shepley said he would not
submit to the test.

Officer Jones went to obtain a warrant and
ordered Harvey out of the room while Shepley's blood was taken. The
State Bureau of Investigation said the result was a blood alcohol
content of 0.14. Shepley was convicted and fined $1250, charged $762 in
fees and received a sentence of 7 days in prison plus a year of
probation on the condition he attend a alcohol treatment program. His
driver's license was also suspended. Shepley's public defender appealed
on the grounds that the initial stop was invalid, Shepley did not
receive a speedy trial, and the drawing of blood without a witness was
illegal. The three-judge appellate panel disagreed.

"The plain
language of the [witness] statute limits its application to situations
in which a defendant consents to take a breathalyzer or other test
designated by the officer," Judge Sanford L. Steelman Jr wrote foor the
court. "We hold that, because defendant's blood was drawn pursuant to a
search warrant obtained after he refused a breath test of his blood
alcohol level, he did not have a right under North Carolina General
Statutes Section 20-16.2 to have a witness present."

The panel
also held that riding a scooter without a DOT-approved helmet was
justification for the stop. A copy of the decision is available in a
120k PDF file at the source link below.

DUI laws seem to be constantly changing. At any given point, multiple state legislatures may be debating new laws that change how drunk dr...

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One day we stumbled upon an idea, to make blog especially for this purpose. DUI/DWI laws are a big branch of law, so they need a special attention. That day MY OVI was launched. We're working hard since 2010.

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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.